11/1/2010

I don’t particularly care whether Californians want to smoke more pot. If the legality of marijuana in California were the only issue raised by Proposition 19, I wouldn’t bother writing this post.

But if you’re really a libertarian, you should be against it. Here’s why. The proposition has this distinctly non-libertarian provision:

No person shall be punished, fined, discriminated against, or be denied any right or privilege for lawfully engaging in any conduct permitted by this act or authorized pursuant to Section 11301. Provided, however, that the existing right of an employer to address consumption that actually impairs job performance by an employee shall not be affected.

That last bit might sound as though it takes care of any problems. But read it again. Under this law, courts may well rule that can employer has no right to take action to prevent marijuana consumption — even on the job — unless it “actually impairs” performance. This is a provision that goes beyond simply allowing people to smoke pot. It actually creates a new protected class (marijuana smokers) who may be entitled to sue if they are disciplined or fired for smoking marijuana . . . as long as the employer cannot prove that the smoking “actually impairs” job performance.

Are you a poor employee? Better start smoking marijuana! Now, if your employer wants to fire you, you have a potential lawsuit: maybe he fired you because you smoked marijuana! Because you, as a marijuana smoker, are now a protected class. That’s a great deal — one that drinkers don’t get. And really, we don’t have quite enough protected classes yet . . . don’t you agree?

Proposition 19 would allow marijuana users to claim that an employer’s actions are motivated by marijuana use. Just as with the FEHA, employers would be required to prove the employee’s poor performance, and not marijuana use, justified the personnel action. Inevitably, disgruntled employees’ claims of recreational marijuana use will draw employers into frivolous lawsuits and undermine the at-will employment relationship.

Real libertarians are against such silly restrictions on the employment relationship. Real libertarians want employers to be able to hire and fire who they want — and suffer the consequences if they choose poorly. Real libertarians should be against the new restrictions this proposition will burden employers with:

Employers would be prohibited from discriminating against marijuana users by taking marijuana use into account when deciding whether to hire an applicant. Any marijuana-smoking job applicant not hired could file a lawsuit claiming marijuana use was the reason, even if the employer had no knowledge of the use. Moreover, unlike alcohol use, which employers can prohibit entirely at work, under Proposition 19, employers could only take action for marijuana use that “actually impairs” work performance.

. . . .

Because an employer would only be permitted to act if an employee’s marijuana use “actually impairs” job performance, an employer’s hands would be tied to take any action based on the perception that an employee’s marijuana use is a potential threat in the workplace. Employers could do nothing to prevent users from smoking marijuana and operating heavy machinery or driving on company business unless such use “actually impairs job performance”, but would still have the responsibility to provide a safe workplace for employees and customers. This would impose an impossible burden on employers.

Keep in mind that DUI attorneys consistently argue that marijuana consumption does not necessarily impair driving. So now, if the employer can’t prove that it does, he may not even be allowed to prevent his employees from driving — at least, not without risking a lawsuit.

This is crazy — and it’s anything but libertarian.

If you want to empower the civil attorneys out there with a new weapon they can use to terrorize employers with, then by all means, vote yes. But if you’re sick of creating new protected classes — if you don’t think employees should be encouraged to toke on the job, to give them a new right to sue if disciplined or canned for bad or lazy work — then vote No on 19.

UPDATE: I should add that, contrary to what you might hear, there is no problem with jails or prisons in California being clogged with people who possess pot. You can’t go to jail in California for having under an ounce of pot; the maximum penalty is a $100 fine, and it’s nothing but an infraction. Defendants go to jail or prison only for dealing.

And with pot, unlike most other drugs, there are no extra penalties for dealing in quantity. This means that in the California state system, you can deal huge quantities (tons) and still get the minimum time available for any low-level felony: 3 years in prison maximum (not counting enhancements for priors, which can always increase any prison sentence). Of that three years, defendants serve only half. And most pot dealers are sentenced to the low term of 16 months, of which they serve only half: eight months.

So, there is no huge incarceration problem that needs to be fixed by screwing up employment law further.

89 Responses to “Tying the Hands of Employers: No on 19”

I would be more sympathetic to that argument if I didn’t believe, to my core, that if Prop 19. is defeated, it will be held up as a sign that even the crazy liberals in California don’t want to legalize pot, and it would kill off any attempt at legalization for the next decade or more.

Eh, you haven’t worked for a private company in awhile, have you, Patterico? Conceptually you’re right, but you already cannot fire anyone without extensive documentation on why you’re firing them without risking expensive litigation. So without prop 19 the people you fire will just sue you because they claim you fired them for being black/white/asian/gay/straight/male/female/transgender/Christian/atheist/whatever.

There are many reasons that one could use to oppose Prop 19, this isn’t particularly one to be concerned about.

EPWJ’s right that this kind of lawsuit isn’t going to succeed every time.

but it would be expensive, and I bet it would be litigated several times. It could even win. Cali is where new torts are born.

I would never employ someone using marijuana. That’s partly just my unfair mind. I’ve had a lot of friends who use marijuana, and many of them are quite capable and smart. But I would never choose to rely on someone smoking pot. I’d want the right to fire them specifically for this reason.

California is the enemy of a liberal, free society, if it passes Prop 19. I wonder if this is a poison pill, or just a symptom of the victimhood mentality.

Barry Goldwater was right… the government controlling who we associate with leads to a stupid place.

We are seeing similar concerns in Colorado due to an interaction with a Colorado statute about employers actions due to off-duty activities ( originally intended to protect tobacco smokers ) and the medical marijuana statute here.

Eh, you haven’t worked for a private company in awhile, have you, Patterico? Conceptually you’re right, but you already cannot fire anyone without extensive documentation on why you’re firing them without risking expensive litigation. So without prop 19 the people you fire will just sue you because they claim you fired them for being black/white/asian/gay/straight/male/female/transgender/Christian/atheist/whatever.

I last worked for a private company in 1997, 13 years ago, when I worked for a large New York-based law firm. I am quite sure that they kept extensive documentation to use in any possible discrimination lawsuit. I am also quite sure that they, and any other private employer I can imagine, would not relish the prospect of yet another protected class being added to the mix.

Maybe Skip, with his superior familiarity with how private employers think, can explain to me why even more potential lawsuits is no problem for private employers. As a simple public servant, I clearly fail to follow his expert logic. Explain it to me so I can understand it, Skip.

It just irritates me, Patterico. First, the guy thinks he is all that and a bag of chips (not so much, from what I have read). More importantly, you have tried an experiment here, and people like him make it more difficult for other people.

On a happier note, what is the celebratory libation of choice in the Patterico household tomorrow?

So, you fire him and claim he’s impaired. It’s not like he’s going to get off the couch anytime soon and actually sue you. But he’ll talk about it a lot.

A fun aside, this provision (along with any number of others) will fall in the first federal courtroom they get to. It’s not like state law can force an employer to allow federal crimes to occur in the workplace.

No person shall be punished, fined, discriminated against, or be denied any right or privilege for lawfully engaging in any conduct permitted by this act

This means you can’t discriminate against someone for engaging in pot smoking.

the existing right of an employer to address consumption that actually impairs job performance

This specifically means that consumption that doesn’t “actually impair” must not lead to discrimination. You only retain your ‘existing right’ to fire someone if you can prove their impairment affected job performance.

Your rebuttal is “read it for yourself”? Every section must be interpreted as to be meaningful. That it requires actual impairment means you can’t discriminate pot smoking without a showing of actual impairment. This is black and white.

Prop 19 doesn’t have a chance. Pot is the #1 cash crop and the growers will bury this proposition because it will put them out of business. It won’t be the anti-pot people that will defeat this, it will be the members of the CA pot production community which is formidable.

Apart from the joy the ambulance-chasing class will take in having a new group of losersclients to fleece, the proposition is going to cause some grief if it passes.

A few years ago, a small airplane inexplicably slammed into an island in Australia just after takeoff. Everyone on board died, either of impact or screaming in flames. Two small children, and one-half of a honeymoon couple, were among the dead. The ATSB couldn’t figure out why a professional pilot had botched things so badly, until they saw the bloodwork from his autopsy: he may not have toked up just before flight, but he was a chronic drinker and doper. Was that the cause? (They ultimately concluded, conservatively and reasonably, that it may have been a contributing factor).

The ATSB then commissioned a literature review to indicate whether and why marijuana should continue to be banned for pilots. And how alcohol compared as an inhibitor of safe performance. To my surprise (having heard a lot of people say dope is less debilitating than booze) they both made someone unsafe to fly, even if he might have been legal.

Contrary to popular opinion, flying a small airplane isn’t orders of magnitude tougher, at least as a motor skill, than driving a car. If you read the alcohol lit review, you will probably recognize descriptions of human impairment that lead to car crashes every day. If you then read the cannabis review, it may open your eyes.

Maybe the right answer is still to legalize dope, I don’t know; but the law should be able to hammer the inevitable stoned drivers.

Also, IANAL, but no doubt some hemp-happy litigant will want the FAA to suspend its drug-testing for California pilots. I think our Federal law would pre-empt, but I already said I’m not a lawyer. Still, we have had a drug-testing policy for commercial aviators for many years. (Not just mishap pilots but random urinalysis). The Australians did not think it worth doing — until the accident recounted here.

If the Andrew Morrises of the world want to kill themselves, that’s one thing, but I object to them taking passengers, property, and potential bystanders on the ground with them. And again, we don’t want this on the roads, either.

Let me put it this way, Patterico – everyone’s already a member of a ‘protected class’ or at least is a member of something that can be plausibly claimed to be a protected class. So the potential litigation threat has increased exactly zero. The only thing that changes is the grounds for the suit. So “even more potential lawsuits” isn’t correct. And honestly, the defense, if they choose the ‘dope smoker as protected class’ is going to be much, much easier than if they chose race, or sex, or religion or many others.

So today, you have an employee who smokes too much dope. You can’t risk just firing him or her, you’re going to have to document things. Prop 19 passes. Guess what? You’re still going to have to do the same things to protect yourself. As for the whole ‘can’t fire them for getting stoned and operating heavy machinery’, presumably the laws that forbid you from doing that while intoxicated aren’t preempted, no?

How do you think that the pot growers will coerce the voting public into voting in the manner in which they wish, William Yelverton? When are you going to post as Pam again’ or’ did you get tired of the sock puppetry and gender bending?

The pot growers have been dusting their crops with black helicopters spewing chem trails.

w, JD’s got a point. How do these pot growers affect this proposition? I’m not saying you’re wrong. I’m actually curious if they are advertising and campaigning to keep pot illegal, or if you think there’s some kind of massive voter fraud.

do the same things to protect yourself. As for the whole ‘can’t fire them for getting stoned and operating heavy machinery’, presumably the laws that forbid you from doing that while intoxicated aren’t preempted, no?

Please identify those laws. As to whether they are preempted, I don’t know. Perhaps a few lawsuits will let the courts iron that out. Oh wait — you just assured us that there will be exactly zero lawsuits. So I guess we’re fine.

I think most folks reading the news are well aware of the recent and widely trumpeted point about the size of the pot industry, actually.

I asked you about HOW these folks are going to shut down Prop 19. I’d like to learn how to do that, too. Are they campaigning against legalization? Buying ads? Some criminal conduct? I’m not saying you’re wrong… I am asking a legit question.

I’m voting for the initiative. But I agree that there’s a danger in these words.

In general, I’m in favor of the notion that employers shouldn’t be firing people for conduct, particularly off-work conduct, which doesn’t impair performance.

But there’s an issue here in that the statute risks putting the burden of proof on employers rather than leaving the burden of proof on the fired employee. That is, rather than a fired employee having to prove his rights were violated, the employer may have to prove his rights weren’t violated. That could be expensive.

I think that a state court could write this out of existence by saying that the ‘existing right of an employer to address consumption that actually impairs job performance’ leaves the employers’ rights right where they are now. That would be the best case outcome; but it’s a risk – I couldn’t state with confidence how the state Supreme Court would fall on that.

——–

W: polls show it passing in the bay area and the north coast, so I think your claim that it’s the growers who will defeat it is inaccurate. It looks like the defeat, if it comes, will be at the hands of the suburban voters of Los Angeles County.

Kevin: driving while intoxicated will remain illegal, including driving under the influence of marijuana. The issue with that is that there’s no per se level (like with BAC); you have to prove actual impairment, which is tough.

You really are denser than lead. I am not disputing that they exist, or even that they grow a lot of pot. The list of subjects that you pretend to have superior knowledge on is practically endless. You should stick to plagiarizing, the lute, and vegetarian paella.

red, to me, the ‘it actually impairs job performance’ is not necessarily the case for every high pharmacist. I think this prop would require this pharmacist to actually be shown to be impaired. Perhaps the impairment would be that it violated regulations necessary to stay licensed, but that probably won’t work.

It’s just sloppy. The entire notion of requiring people not to discriminate on this basis is pretty damn foolish. I should be able to discriminate against people who can’t match their socks, if I feel like it. I can understand some law against truly egregious discrimination, but this approach has opened the door to what we’re looking at in prop 19, and I’d rather just let bigots and racists and idiots face outraged customers and low profits instead of the law.

Speaking as someone who has done systems engineering for a living, I have to say that this just freakin’ astonishes me. The first thing any good engineer does when evaluating a new design is to try to break it. We congratulate each other for finding failure modes in a design before it’s implemented, because we think the things that we create are important. If some of the things we build go wrong, people can get hurt.

those of you saying “gee, employers won’t get sued” have no clue. I’m an employment attorney and this initiative, it if passes, will cost companies millions in defense costs. As it is, we already face claims by employees in various states who test positive for pot after a workplace accident and are terminated. They claim disability discrimination, etc. and claim that testing positive doesn’t mean they were under the influence. True, but how else is an employer supposed to prove impairment? They can’t.

Creating another “protected class” in employment certainly isn’t the answer – unless the question is, “how much more wealth can we redistribute and how much of a commission do the trial lawyers collect in the process?”

Totally agree with Patterico on this one.
While in the military I lived in the dorms while single. A friend and I were going to another country for some R&R. At the time the Air Traffic Controllers lived in our dorms. One of them would have the old familiar smell wafting from his room on occasion. While we were sitting in a 747 waiting for takeoff I remembered he was one of the controllers on duty that day and boy did that get me to thinking…
When I returned I turned him in. Not a big fan of being a “narc” but there are some things that should not be condoned. Same must apply to employers and their ability to demand appropriate behavior irt substance choices.
Having “experimented” with it for a couple of years with the occasional habit of inhaling I believe it does have a detrimental affect on some people’s memory and judgment even when not high. So while legalizing it is probably not the end of the world I have a lot of reservations about it.

I should add that you already can’t go to jail in California for having under an ounce of pot, and it’s nothing but an infraction now anyway. Currently, you go to jail or prison only for dealing — and with pot, you can deal huge quantities (tons) and still get almost no time (3 years max, serve half) state-side in California.

So there is no huge problem that needs fixing by screwing up employment law further.

I can see both sides of this issue, but I agree on the whole with Aphrael’s point. If the gov’t had not insisted for decades that anyone smoking a weed that grew naturally across this country would make one an evil degenerate, homicidal maniac or drug – addicted sociopath, then the question regarding legalization may not have become so polarized. Billions of dollars spent on eradicating a weed, and what have those outlays sown? Ridiculous levels of non – violent incarceration, leading to more billions spent on prisons, spraying crops, etc. I always ask those violently opposed to decriminalization about how many people have been convicted of beating their spouses, holding up a liquor store, then shooting someone on the street – all after getting stoned. Their answers are always the same: they have no idea, but they’re absolutely sure about the righteousness of their POV.

And when my insurance company tells me that they will no longer cover any of my drivers or operators who have tested positive for marijuana usage — and remember, the test doesn’t cover current intoxication, but only detects past usage — what can an employer do about pot smokers he can’t insure?

UPDATE: I should add that, contrary to what you might hear, there is no problem with jails or prisons in California being clogged with people who possess pot. You can’t go to jail in California for having under an ounce of pot; the maximum penalty is a $100 fine, and it’s nothing but an infraction. Defendants go to jail or prison only for dealing.

And with pot, unlike most other drugs, there are no extra penalties for dealing in quantity. This means that in the California state system, you can deal huge quantities (tons) and still get the minimum time available for any low-level felony: 3 years in prison maximum (not counting enhancements for priors, which can always increase any prison sentence). Of that three years, defendants serve only half. And most pot dealers are sentenced to the low term of 16 months, of which they serve only half: eight months.

So, there is no huge incarceration problem that needs to be fixed by screwing up employment law further.

I like the dissonance of making it illegal to smoke tobacco in the workplace (and I don’t like burning plants in my breathing space) but defending cannabis smokers.

Robert Heinlein used to call this period “The Crazy Years” in his stories, and had selections of odd headlines. Some of them are still odd, but far too many aren’t that different from the Nutty Deluxe period in which we live.

If the proposition passes, I hereby declare first dibs for coming up with the term, “Brewer and Shipley Defense”. When all else has failed, the employee can claim they were just, “One Toke Over the Line” and should get a second chance.http://www.youtube.com/watch?v=gbbqIHHMVxA

Any and all proceeds from this intellectual property (that are not already tied up in litigation with said performers and their publishing company) will cheerfully (without use of the plant in question) be donated to the causes of repealing the proposition and defending employers left none too cheerful by frivolous litigation. (Although even as I write it, I must say there is something odd about linking pot use with the term frivolous, as most of life seems so after the “One Toke Over the Line” is reached, which is why the proposition should fail, IMO).

I like the dissonance of making it illegal to smoke tobacco in the workplace (and I don’t like burning plants in my breathing space) but defending cannabis smokers.
Comment by Eric Blair

Dissonance? What dissonance? How dare you!! For something to be dissonant you must be claiming that one of two items does not “go together”. What bigotry!!! I bet you even believe the earth is round and 2+2=4 all of the time.
[ of course]

Patterico: huge problem or not, I want this initiative or something similar to it in this regard to pass, because I believe that people selling pot shouldn’t be facing any jail time (or the black mark of a felony record which makes it harder for them to function in the normal economy) … and this initiative’s failure will make the day that that is true instantly become further away.

It’s an imperfect law, and many of the arguments for it are silly and borderline dishonest (no, this won’t solve the state’s budget problems) … but the current situation is so unacceptable to me that this imperfect law is an improvement, even so.

With legalization, will the state impose the same rate of taxation on cannabis as it does on tobacco?
Will all sellers have to possess a Seller’s Permit from the Board of Equalization?
I can’t wait for the audits of the seller’s books – they do realize, don’t they, that all transactions will have to be documented (the BofEq [sales tax] takes a dim view of working out of a “cigar box”, as does whoever collects tobacco taxes [BofEq or FTB?])?
And, on your CA tax return, will bail money for getting out of the Fed lockup be a deductable expense?

Actually, the real anti-libertarian portion of this law is to create a huge State Government regulatory scheme to harvest permit fees and tax dollars from growers and users to fund Californias bankrupt welfare State.

One logical result of this prop will be that EVERY time a person is considered for employment, the employer will REQUIRE a urine test for pot before an offer is made.

With the results of the test and the sum of the other evaluations and opinions, a positive test will preclude an offer to hire. The employer will not claim the positive pot test was the cause but another candidate will be offered the job.

“…and claim that testing positive doesn’t mean they were under the influence. True, but how else is an employer supposed to prove impairment? They can’t…”

Its called a Field Sobriety Test. It works if your drunk or high on pot. Any employer who thinks his people are impaired, by booze or pot, would do well to call the cops. But I’m not sure if that is feasible. Or, maybe employers will have to train one of their own to administer it on the job.

Employers can also place restrictions on the job, much as is done with employees who use narcotics for pain; can’t drive heavy machinery, etc. when you have smoked pot that day.

IIRC, back in the day, they busted college/high-school kids who used to “harvest” the weed that grew wild along roadways in places such as Nebraska and Iowa.

Oh yeah – here, too. I remember growing up next to farm fields that suddenly smelled of cannibus in extreme, based on large – scale burn – offs of pot fields by local and federal officials.

the employer will REQUIRE a urine test for pot before an offer is made

Many require a hair test for usage, which means they can detect if the user had pot over many months prior. Sounds plenty discriminatory to these ears.

BTW, if your assumption proves correct, then Silicone Valley’s in deep sh-t. Having worked for a few tech companies over the past 15 years, I can tell you from personal experience that many of the staffs are at least casual users of cannibus. And you think that CA is going to ostracize that business community? Don’t think so.

So some employers will let prospective hires in even with a positive pot test but they will judge carefully. Testing positive for pot puts up a red flag for future law suits, both from the employee and from outsiders who have a damage suit from the employee’s actions.

If the employee who smokes pot does something stupid and causes damage, the damaged party will go after the deep(er) pockets of the employer.

Discovery will find the hiring pot test record and the jury will have to decide whether a company that hired someone they knew was a pot head should or should not be a least partially responsible for the damages.

Granted, a hair test works too but the urine tests are cheaper and quicker and raise fewer objections from the testee.

I suspect that different companies/industries will handle this differently. Basically, nothing will change in silicon valley. On the other hand, I can see a lot of companies testing before hiring and excluding on that basis.

If the proposition passes, I hereby also declare the idea in principle for a computerized “functional impairment test”. A series of manipulations on a Tablet computer that tests reaction time and coordination. Every employee has a series of baseline studies done. The employee is subject to testing at any time. If the employee is lower than a given set point (say, 1 1/2 standard deviation) they get sent home. Doesn’t matter if they were smoking pot, drinking alcohol, stayed up too late playing video games, distracted by an argument with their significant other. A certain number of being sent homes and you are as out as the Texas Rangers, all you SF fans. And yes, you are tested against your baseline, whether or not you’re twice as fast as Joe. Joe empties trash cans, you operate on brains, you need to be judged by different standards. And even if Jim is twice as fast as Joe and Jim empties trash cans too, Jim is getting paid for doing Jim work, not 1/2 pace Jim work.

Freedom comes with a price (like everything in this world) the major price being responsibility. If you want to have the freedom to use mind-altering substances, you have the reponsibility to show your judgement is not impaired. Do you like your children to be given rides by someone who has been smoking pot? How much?

How about class action suits against pot growers by parents whose kids drop out of college using pot, who are killed in car accidents by impaired drivers? Like Eric said, everyone freaks over tobacco smoke and even “Smoking Areas” are done away with. Make some “Pot Smoking Areas” at least for people to stay in.

Next comes herbal grade cocaine, the real “Throwback Coca-Cola”.

Say I like beaches and want to start a new business somewhere in the US; between the tax and economic climate in CA and needing to hire an impaired work force, why in the world would I go west of Texas? Arizona will write a new law looking for unregistered Californians, along with having state police on every incoming road from CA- just like when youth from 21 drinking age states would drive to neighboring 18.

My one room mate in college who was usually “laid back” with assistance ended up graduating and getting a good job- after he gave it up, “Because you gotta grow up sometime” he said.

When the general populace shows good enough judgement sober to have some left when impaired, I’ll be all for it.

Besides, the First Lady is fighting obesity in youth. Unless a “munchee free” version comes out, there goes that public health effort.

It’s not just employers who will be affected by that section; it’s all sorts of voluntary organizations. Boy Scouts and Girl Scouts would not be allowed to prohibit marijuana users from becoming troop leaders (the same goes true for youth sports coaches). Any organization with volunteer positions dealing with the public (e.g., docents) could no longer have a prohibition on marijuana use. Colleges could not require their athletes who were 21 and over to refrain from using marijuana. Applying current court precedent, a “straight edge” [no tobacco, alcohol, or drugs] college student group could be forced to admit marijuana users to its membership if it wants to be a chartered organization.